The photographer's contract – a rationale

Photographers, being such creative and free spirits, have traditionally spurned the idea of written contracts to protect their work. For many this has impinged seriously on their ability to maximise their earning abilities. Many clients out there have no scruples about capitalising on the work of others and indeed many incorporate this ability into their business models. The Copyright Act of 1978 removes copyright protection from photographers working on assignment and many clients take this aspect further by treating a photographer's work as a commodity to be sold in many markets. In other words to make a profit without the photographers sharing in it. Some of the recent contracts from magazines confirm the photographers exclusion from the economic benefits related to the value of his/her work by grabbing all rights of reproduction. Some photographer's agreements try to counter this but often do not produce any real gains. They merely stop any further erosion in a photographers economic position.

SAFREA has decided to embark on producing its own series of contracts for freelancers. The aim of the SAFREA Photographers Contract is to protect and enhance photographers rights and to do away with the very uncertain and potentially exploitive way business is done; to put photographers on a more professional footing. Photographers are, in a way, their own worst enemies as few have a solid business background and seek recognition only for the quality of their work and not the complete remuneration that should go with it. Many are content to get the work in the first place and not counter the fully exploitive agreements that often accompanies it. Some have even commented that they don't understand contracts but acknowledge that their work has been used in contexts they never thought of and certainly don't get paid for.

The purpose of this article is to explain the terms of the SAFREA Photographers Terms of Agreement in laymans terms so that the issues may be understood better and the photographers negotiating position strengthened. The contract is drafted solely from a photographers perspective and does not bow to outside pressures. It's terms may be negotiated downwards or away if the photographer needs to do this but unaltered gives a very high level of protection against further exploitation.

We all hope that our assignments are trouble free and that our clients play fair. A proper contract in place before an assignment begins is our only guarantee that we will not lose out if trouble strikes.

FIRST OWNERSHIP OF COPYRIGHT

An assignment photographer does not own copyright, in South Africa, in terms of the South African law. This does not apply to work commissioned in South Africa and used abroad. This produces often complex copyright ownership issues The First Ownership of Copyright clause overrides this statutory position by asserting the Photographers initial copyright ownership and making it part of a legally enforceable contract. Once a Photographer owns copyright he has the right to control all uses of the photographs.

USAGE RIGHTS

This section licenses the photographs for specific use(s) irrespective of who actually owns the copyright. This limits the uses to which a client may put a photograph. It stops him from giving it, selling it, reusing it or re-running in a stable magaazine or allowing uses by third parties. The license has a period of currency and then lapses. The photographer may re-license it to a client for an additional fee. This clause also says that all other rights of usage belong to the photographer including use for self-promotional purposes.

PAYMENT

Payment is demanded within a specified period of 30 days from the date of submission. Salaried employees don't worry about a freelancers cash flow. This clause penalises them in two ways. If the payment is late then the license is withdrawn. Interest at 2% above prime has to be paid per month or part month overdue. A withdrawn license means that any use of the photograph is a copyright infringement which is subject to statutory penalties.

OWNERSHIP OF MATERIALS

Self explanatory

ECONOMIC RIGHTS

This asserts that the Photographer has the right to participate in any additional earnings from an further use of the work. Sometimes it may not be possible to get a client to agree with the First Ownership of Copyright and this clause makes it clear that if the client makes money from the work, the photographer wants an equitable and fair share.

ADDITIONAL EXPENSES

Self explanatory

CANCELLATION FEES

Puts a price on last minute pullouts by the client that leaves the photographer without a booking that can't be filled in time. This also covers cancellations/weather postponements. Most photographers have a fee structure based on time spent. If the time is booked but subsequently cancelled at short notice, the photographer loses out.

HOLDING FEES

Clients holding onto work stops photographers marketing the work elsewhere. This clause mainly applies to physical photographs such as prints or film but could be applied to Cds. This clause penalises tardy clients.

ELECTRONIC STORAGE

Photos stored digitally can be sent all over the place at the click of a mouse. After long time storage on a computer, copyright info can get detached and ownership details lost. The picture may get used again and the photographer not paid. Getting the pictures off a clients storage media quickly reduces the possibility of this happening. This clause also disallows any further uses of pictures in different ways without the photographers permission.

EXCLUSIVITY

This confirms the photographer can use the work to promote him/herself but that the client is the only other entity than can use the photographs during the currency of the license. Once this has expired (and not renewed for a fee) the photographs can marketed by the photographer.

LOSS OR DAMAGE

If the client loses or damages work, it will cost him. This clause specifies what compensation is required.

REJECTION AND KILL FEES

Specifies on what basis work can't be rejected. Style and composition are integral to the brief and if the photographer has stuck to the brief this clause stops the client changing his mind. This clause also stops a client from pushing the financial responsibility onto the photographer if the client changes his mind about the whole project. If the fault is due to external circumstances (no blame) then the photographer will get some compensation.

INDEMNITY

If someone sues over a published photograph then the client picks up the responsibility. The context in which a picture is published is usually beyond the photographers control and therefore he shouldn't be liable for any hurt inflicted.

DISPUTE RESOLUTION

Two methods of resolving disputes are offered if the photographer and client are unable to reach agreement on the interpretation of this contract.

Arbitration – this method looks at the contract terms and interprets them in relation to the dispute. A finding is made and both parties are supposed to submit to its findings.

Mediation – a mediator acts as a channel through which the dispute is funnelled. A finding of fault is not made as the process is designed to make this self-evident.

The arbitration process is usually the more expensive option but the photographer has a choice.

DEFAULT

If the photographer has to sue to enforce the contact terms, the client will pick up the tab

VARIATION

If, during the negotiation period, some changes to the contract terms are agreed then these must be in writing to be of any effect. Verbal agreements carry no weight in a court of law as they are difficult to verify.

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